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For Now, Court Stays Mum On Gay Marriage Cases


This is WEEKEND EDITION from NPR News. I'm Ari Shapiro. This week is the start of a new Supreme Court term. It's also a milestone as this session marks a decade with John Roberts as Chief Justice. Our legal correspondent Nina Totenberg, sometimes called the 10th Justice, joins us now to take a look back and ahead. Welcome, Nina.

NINA TOTENBERG, BYLINE: So nice to be here, Ari.

SHAPIRO: After 10 years with John Roberts as Chief Justice on the court, how would you say he has changed the Supreme Court in contrast to his predecessor William Rehnquist, who was also conservative?

TOTENBERG: You know, some of the changes are cosmetic. He's a little more willing to let counsel talk beyond when the red light goes on. The other changes are somewhat speculative, but this court, its most conservative thrust often is keyed to the First Amendment, oddly enough. It's a very libertarian court. So a way to attack all kinds of federal restrictions is through the First Amendment free-speech guarantee. I'm not sure that Rehnquist would've gone along with that. I don't know how he would've felt about some things in the campaign-finance area that this court has been extremely expansive about.

And in the leadership sense, we're not sitting in the conferences so we don't know how much leadership there is. What we do know is that sometimes this chief justice is in the minority; sometimes he's very important in the majority as he was when he saved Obamacare. I think we're going to have to wait another 10 years before we have a real sense of his leadership capacity. And one wonders, you know, how much is leadership and how much is just votes - the people who are there. You can't lead somebody who doesn't want to follow.

SHAPIRO: Well, do you think of the nine, he has defined this court more than any others? Or would you put that with somebody like Justice Anthony Kennedy who is more often the swing justice?

TOTENBERG: Even in the campaign-finance area, Roberts was willing to go along at a very sort of incremental pace. And Kennedy, in the Citizens United case, circulated an opinion that eventually, essentially became Roberts' opinion, what was the dramatic opinion undercutting decades of law. So Kennedy took the ball away from him in that case. And I think there are probably some other cases like that and cases involving gay rights and same-sex marriage, where at least so far, Kennedy has been the fifth vote on the liberal side.

SHAPIRO: There have been no retirements on the court since 2010. Many people are wondering whether one of the more liberal justices will retire while there is still a Democratic president in office. Any speculation or signs you can point to?

TOTENBERG: You know, if this were a more centrist court, I might think that was possible. But Justice Ginsburg most recently said that she's not about to retire. That she'll keep doing this job as long as she can do it well. And why should she retire, she said, when there is little if any likelihood that President Obama could get through the Senate somebody who she would like to have replace her.

SHAPIRO: Well, you have a detailed preview on Morning Edition tomorrow of the major cases in the term ahead. Without spoiling the surprise for Morning Edition listeners, can you give WEEKEND EDITION listeners a few of the big headlines?

TOTENBERG: Well, a lot of them involve elections, whether it's limits in judicial elections to try to make sure there aren't conflicts of interest or state laws that allow independent commissions to draw congressional district lines to try to keep politics out, those sorts of things are all being challenged. And then there are a lot of cases in the pipeline that we all would recognize from the front pages of the newspaper; laws that make abortion less accessible, another affirmative action in higher education case, and another Obama care case that's very technical, but it could unravel the whole law.

SHAPIRO: NPR legal affairs correspondent Nina Totenberg. Thanks, Nina.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.